MAHAVIR ISPAT Vs. COMMISSIONER OF CENTRAL EXCISE, HYDERABAD

JUDGEMENT

(1.) THESE are two appeals filed by the appellants. After hearing for some time with reference to the stay petitions, we felt that the matter itself can be disposed of. Accordingly the appeals were taken up for regular hearing with the consent of both sides.

(2.) ISSUE relates to determination of annual capacity production in terms of Rule 96ZO(3) of Central Excise Rules, 1944. Shri K.S. Ravishankar, Advocate appearing for the appellants submitted that the appellants have claimed abatement for the periods factory was closed but the claim has been rejected by the authorities on the ground that there was a delay in filing the intimation of closure. He said that in Appeal No. 24/2001, the factory was closed for the period 7 -9 -98 to 15 -9 -98 and 16 -10 -98 to 26 -10 -98 and similarly in Appeal No. E 23/2001 the factory was closed for the period 17 -10 -99 to 1 -11 -99. He said that there was only one day delay in respect of period 7 -9 -98 to 15 -9 -98 and there is a delay of four days for the period 16 -10 -98 to 26 -10 -98, but the appellants could not intimate well in time due to Saturday and Sunday added to Ayudha Puja and Vijaya Dasami. He said that same position even in respect of 17 -10 -98 to 1 -11 -99 as there were intervening gazetted holidays. He said that delay due to intervening holidays was condonable and it was held by the Tribunal in the case of D.C. Steel (P) Ltd., v. CCE, Chandigarh reported in 2002 (139) E.L.T. 291. In that case it was held that abatement was permissible since it was humanly impossible to give notice on Friday evening itself with Saturday and Sunday being holidays.

(3.) SHRI Narasimha Murthy appearing for the Revenue submitted that there was a delay in filing the intimation of closure and since the Commissioner was not empowered to condone the delay as it was held by him in the respective impugned orders the claim of abatement was rejected.